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Lord Clinton-Davis: I have no objection to the amendments moved by the noble Lord, Lord Thomas, but they ought not to be included in the Bill. I have not had an opportunity to consider them carefully.

Lord Goodhart: Could I explain to the noble Lord, Lord Clinton-Davis, that this material is already in the Bill, and is simply being rearranged? That is the point of Amendments Nos. 9 and 10—they simply shift some of the material that is currently in Clause 2 into Clause 3, and some from Clause 3 into Clause 2. That will create a logical structure in which Clause 2 deals with the making of control orders and Clause 3 ends up dealing with their duration. Every word of the material, with the exception of one minor consequential amendment, is already in the Bill.

Lord Clinton-Davis: I am much obliged to the noble Lord, but I have not had the opportunity to consider the material. I just picked it up a few minutes ago. I wonder whether he would be able to take it away and come back to it on Third Reading.

Lord Renton: I wonder if the noble Lord, Lord Clinton-Davis, would be reassured if I draw his attention to paragraph (b) of Clause 2(1), which is plain, and goes to the crux of the matter. It says that a court may make a control order against an individual,

That surely goes to the crux of the matter. It is what all of us are trying to achieve. Although it is altogether a very long clause, if he considers the various consequential subsections that go with it, he will realise that they are all in support of that main proposition.

The Duke of Montrose: My Lords, my noble friend, Lord Kingsland, in speaking to Amendment No. 12 has brought us into Clause 2 and the role of the Director of Public Prosecutions in making non-derogation control orders.

I raise a point which has been brought to my attention by the Law Society of Scotland. Clause 2(1) sets out the criteria which the court must consider when making a control order. Clause 2(1)(c) refers to information being received by the Director of Public Prosecutions to the effect that,

There is currently no reference made to similar consultation in Scotland with the Lord Advocate. Does the Government envisage similar consultation in Scotland? This may be an oversight as the Bill is progressing very quickly, but I thought that it may be useful to highlight it.
 
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Baroness Scotland of Asthal: My Lords, we have two groups of amendments to deal with. Perhaps I may explain what the government amendments seek to do. As a result of the Committee's decision to introduce provisions for non-derogating orders which are similar to those for derogating orders, the Bill had certain technical defects. The government amendments seek to rectify those technical defects so that the Bill reads more easily.

However, the government amendments do not address or seek to address the provisions in the amendments of the noble Lord, Lord Goodhart, and spoken to today by the Liberal Democrat Benches. They appeared at first blush, as has been said, to replicate the original government provisions, which were constrained and confined to the derogating orders. We do not accept that it is appropriate to conflate the two procedures. On the role of the DPP and the proper role of the judges, we maintain that the balance is not right. But of course we accept the decision made by your Lordships. Therefore, we can understand, although we do not agree with the way the provision is proposed.

Basically, the House has a choice. If one simply wishes to tidy the Bill so that it makes better sense and is more consistent, we should constrain ourselves to the government amendments. I do not suggest for a moment that we would want to test the opinion of the House, I am simply explaining the issue as we see it so that the House understands. If Members opposite would prefer to import that now so that when the Bill returns to the Commons it is in a form which they think better represents their view, the Government would not agree but they would not resist.

We do, however, think that it makes better sense to do the tidying which is necessary to make the construct that was passed by virtue of yesterday's vote plain on the face of the Bill, so that when the other place comes to consider the matter it can express a view. I very much take into account what was said in yesterday's debate—that the other place has not had an opportunity to express its view on the amendments considered by your Lordships and which were laid by the Government; neither will it yet have had an opportunity to consider this matter. So we would prefer it if the amendments laid in my name on behalf of the Government were allowed to pass, so that the other place has the perfected version of that construct, before we add procedures to it, which may or may not prove necessary in the other place.

Bearing in mind the nature and extent of the debate, we think that that would be the better course. It is a matter for your Lordships whether you do that.

The Lord Bishop of Oxford: My Lords—

Baroness Scotland of Asthal: My Lords, I know that the right reverend Prelate wants to get to his feet. Perhaps I may answer the comments of the noble Duke, the Duke of Montrose, about the Lord Advocate. Yesterday, the noble Duke will know, there was a debate on whether the appropriate person or entity identified should be the Lord Advocate or—as
 
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our Scottish colleagues suggested in relation to the government amendments—whether he should be the Procurator Fiscal.

The Government do not accept the premise that it is appropriate or proper for the DPP to be so exposed, in the way the current provisions provide for the DPP's role. On that basis, we will not be suggesting that there should be a similarly unacceptable position for the Lord Advocate. So the Government will not bring forward those amendments. But I absolutely understand what the noble Duke says. On the premise that it was appropriate and proper so to conflate the roles of the DPP in this regard there would be an argument. I do not think we have got there yet. I shall give way to the right relevant Prelate.

The Lord Bishop of Oxford: My Lords, what is meant by the words in government Amendment No. 2, "court under section 2"? Does the Minister envisage the provision being along the same lines as that of the noble Lord, Lord Goodhart, and other noble Lords or do you have something different in mind?

Baroness Scotland of Asthal: My Lords, that depends on the final construct of the nature of the judicial involvement. If the other place were to accept that there should be no difference between the derogating orders and the non-derogating orders, but that there should be a unity of procedure, then one can see the force of replicating the rules.

If, however, the other place reached a different view—that the construct advocated in this House by the Government and placed in the amendments which were debated in this House is the better course—then a different construct would prevail. It is of course open to a third and different construct, which is not currently considered to be before the other place. That is why we think it would be more prudent to restrict the amendments to those needed on the face of the Bill, so that when it returns to the other place—if I can speak colloquially—it makes sense, but without presuming that the consideration will necessarily go in the way that we have currently indicated.

As I have indicated, we are certainly not going to divide the House. I can only urge noble Lords to accept the government amendments, which are sound and make the necessary technical adjustments that make the vote undertaken by your Lordships make sense and be consistent.

Lord Lloyd of Berwick: My Lords—

Lord Thomas of Gresford: My Lords, on Report it is only the proposer who has a right of reply. If the noble and learned Lord wishes to interrupt me, I shall obviously give way.

Lord Lloyd of Berwick: My Lords, I have one simple question to ask. If it is in order I shall ask it, but not otherwise. My question is on the new Clause 2, which I entirely support. I supported it yesterday and still support it. At what stage will it be open to the suspect—I shall call him the suspect—to challenge the
 
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validity of the derogation order, whether on the grounds that there is not a state of emergency threatening the life of the nation or on the grounds that these measures are not proportional to that emergency? There must be some point at which that challenge can be made. Is it at the preliminary stage or at the full hearing?


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